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DUI Blood Tests in Scottsdale Under Fire

DUI defense attorneys from around the state of Arizona have gathered their Scottsdale DUI cases together in one giant challenge to the Scottsdale Crime Lab's shoddy testing methods. While the actual cases that were part of the hearing only affect eleven felony DUI cases, Judge Bernstein's ruling in the case could extend to potentially thousands of cases coming out of the Scottsdale Forensics Lab.

When an officer in Arizona makes an arrest for a DUI, he has the ability to force you to undergo a test of your blood, breath or urine. You have little to no say in the matter, with a refusal to take the test causing serious complications for your driving privileges.

Many officers, in many jurisdictions chose to put those they arrest through blood tests. Scottsdale is no different. The blood test the officer takes from you goes to the Scottsdale Forensics Laboratory where it is tested on a machine known as a Gas Chromatograph.

According to defense attorneys, and subsequently bolstered by secret internal emails within the Crime Lab itself, the particular GC used by the Scottsdale lab had been undergoing problems since the day it arrived.

Alarmingly, experts and analysts from the crime lab never mentioned in court the problems they were having with the machine. They routinely took the stand, testifying that all was well within the lab and that any irregularities in test results were due to little things like loose caps or scrivener's errors. At no time did any of these experts testify that they were not only having problems with the machine, but that they were also having problems with the manufacturer. Emails between crime lab personnel and representatives from the manufacturer revealed that the company had supplied a patch they thought would fix some of the problems.

When told that the patch did not fix the problems the manufacturer replied that the causes for the errors were "unknown."

Apparently satisfied with that ambiguous answer, and completely unconcerned whether they were providing false evidence and therefore false testimony, crime lab personnel continued to testify that there weren't any problems, either with the machine or the testing procedures.

Literally thousands of people were prosecuted with suspect blood test results. Defense attorneys time and time again, since 2009 when the machine was put into use, challenged the test results to no avail.

Until recently.

Eleven felony DUI cases were bound together and set for hearing in front of Judge Jerry Bernstein of the Maricopa County Superior Court. For fifteen days attorneys for each side presented evidence in the form of written communications and expert testimony. Throughout most of that time crime lab employees testified that there were no problems. Then secret internal emails between crime lab employees and between crime lab technicians and the manufacturer were revealed due to a public record's request from The Arizona Republic. The emails made it clear that technicians had no confidence in the machine, referring to it as "the problem machine."

Judge Bernstein echoed defense attorney's dismay in stating, "The Court is given pause that these emails about concerns that the Scottsdale Crime Lab was having with the instrument occurred during the pendency of the evidentiary hearing. During her testimony, Ms. Valdez (of the Scottsdale Crime Lab) never revealed any of these concerns that she revealed to Perkin Elmer (the manufacturer).

The end result, at least for those eleven defendants, is that their blood results have been suppressed. Their cases have not been completely dismissed, however, and they will still face charges on whether or not they were 'impaired' under DUI law.

Thousands of other cases, and all of those previously adjudicated could come under scrutiny now, however and anyone who has had a blood test DUI out of Scottsdale should contact an attorney immediately to discuss the possibility of an appeal.

Naturally, in a stunning display of recalcitrance, the Scottsdale Police Department, the Maricopa County Attorney's Office and the Scottsdale Attorney's office are all sticking their heads in the sand and hoping to appeal Judge Bernstein's ruling, rather than accepting the facts and addressing the issues. Whether their refusal to admit the problems arises to the level of prosecutorial misconduct or not remains to be seen, it certainly seems pigheaded, at the very least.

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About the Author

Craig W. Penrod was born and raised in Arizona and has practiced criminal defense for over 30 years. Mr. Penrod is a member of the State Bar of Arizona, Maricopa County Bar Association, State of Nevada Bar Association, American Bar Association, American Trial Lawyers Association, Arizona Trial Lawyers Association, Nevada Trial Lawyers Association, Arizona Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers.